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tv   Charlie Rose  WHUT  October 19, 2011 3:00am-4:00am EDT

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>> charlie: welcome to our program. tonight from the supreme court in washington, a conversation with justice john paul stevens. >> the judicial work is different from clinical work. and one's approach to a judicial may involve considerations that are entirely different from one's own political views about the matter. so that i really think that conservative judges can be a wide range of political views. >> charlie: justice stevens for the hour, next.
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captioning sponsored by rose communication from our studios in neyork city, this is charlie rose. >> charlie: tonight from the supreme court of the united states, a conversation with justice john paul stevens. he is the trd longest serving justice in the history on the court. during his tenure he's written over 1400 decisio. he's filed more dissents a separate opinions than any of his colleagues. he considers himself a judicial conservative he shaped the court's liberal jurors presence. he retiredfter servi for 35 years. at 91 he continues to follow. he has many interests including tennis and golf. he writes about his distinguished career, it is called five chiefs, a supreme court mem warrior. justice stevens joins me now in his chamber. >> it's nice to see you. >> charlie: te me how you think the court has changed since you first took note of it
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as a young lawyer. as a young clerk. >> well of course, as i say early in the book, every time there's a new number in the court, the court changes. so the court has gone through however many appointments that have been made since that te and every one has been a significant change. so i couldn't really sum up the whole story in a very short answer. >> charlie: but it has been becoming more conservative. >> well, if you use the term conservative as i suppose appropriate, i think every appointment to the court since i was a law clerk been has been more conservative than the one before it with a few exceptions. there are some that are not. justice ginsberg is probay not more conservative than justice white. but most of the members ofthe court are significantly more conservative than their predecessors. >> charlie: you say the
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succession of justice thomas for the seat of thurgood marshall was a dramatic turning point. >> yes. >> charlie: because. >> the reason is for all good rose on his part. his views of the constitution are significantly different from thurgoods as exempt fide by stick cases that were decided over the time he's been here. i think i do name several examples of cases in which i feel very sure thurgood would have voted the other way. since they are all 5-4 decisions, they affected the outcome of the case. >> charlie: of all the chief justices you also three justices or perhaps more. but threeyou seem to like. -- stewart, byron white and thurgood marshall. >> yes.
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>> charlie: why those three. >> it was 79 necessarily deliberate and i really don't think i intended to exclude other candidate but thurgood marshall of course is hero for many reasonshat everyone is familiar with. i think otter stewart has been under estimated cause he's brilliant judge, a brilliant writer and excellent companion, with respect to byron our views differed on particular issues but i always admired his approach to the law and his approach to particular cases. and i was very very fond of him. very very nice guyth my estimation. >> charlie: what's been the impact of justice scalia. >> he's had a significant impact on the court. some a very fine impact. he's written a number of very fine opinions and he's a very brilliant person and a very nice guy. he had a very significant
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impact on the court. >> charlie: when you look at this argument about originalism or stripped interpretation and the philosophy you have, how would you define the difference? >> between originalism and my philosophy. >> charlie: as artilated by justice scalia. >> origilism actually is described in different ways in different times. and some people think it refers to the original intent of the people who drafted either a statute or a constitutional provision. think more and more in recent years those who describe themselves as originalists and not focused on the intent of the draftsman but rather on the intent of the reader or the community in which the law is enacted or distributed. so there's some difference approach to originalism. >> charlie: how would you then define where justice scalia is in your judgment. >> i think he's in the latter category. i think he is more looking at
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the intellectual universe in which the law was adopted and received. he was from the reader's view somewhat more than the author's view. >> charlie: and you? >> i think far more -- they are both relevant. they're both relevant, but i think i tend to look more closely if i can at what the person who was responsible for the draftsmanship of the particular statute or the constitutional provision intended. >> charlie: is there a way for us who are not legal scholars or dn't go to law school, to look at the prism to see what the court does. >> that's an interesting question. there are of course a few central issues that recur over and over again in different context but i think it overlooks the fact of the wide variety of
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issues that the court has to resolve. statutory questions, constitutional questns. sometimes what the rules mean. there's ju a host. i think sometimes the public generally overlooks the fact that on a huge percentage of the court's work, the members of the court are unanimous. grants are in a certain number of cases and denial of literally hundreds and hundreds of other cases reflects an understanding by the members of the court they basically think the decision was acceptable. most of the work of the court is not issues in which the division within the members. >> charlie: the process. you have been for a number of years a senior justice and you got there before who wrote the majority opinion. there is some by others written
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about you that you use that very carefully in order to sometimes assign it to a swing justice because you wanted to make sure that the opinion reflected the views that you believed. >> that criticism or praise whichever one looks at it overstates what i'm entitled the credit for. i tried to assign opinions to justices who i thought would do a good job writing the opinion. i think very rare case in which the person whom it's assigned made a difference in the outcome. >> charlie: not justice kennedy on a particular case. >> the cases i assigned to justice kennedy are cases in which i think he was pretty all set in his views well before i made the assignment. >> charlie: awarding the opportunity to write a majority opinion doesn't change necessarily the way that justice while write the opinion. >> no. very rarely.
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i think the other sometimes happens and it happened to me on more than one occasion, but sometimes when you start writing you find the opinion won't write the way you thought it would. and you will sometimes change your own mind in the process of working it out. so i think that, i'm thinking you can control the outcome by picking the author's opinion is a phenomena -- >> charlie: that's exaggerate. >> very much exaggerated. >> charlie: it's an interesting idea and hopully what ces out of this is a number o interviews i've done here at the court with justices, including chief justices, is an undersnding for america of what happens here and how it happens. and therocess. and yo do that in part by talking about these five chief juices. let me go through this and just give me a sense of how each of them wereifferent. starting with justice vincent who was chief justice at the
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time of harry truman and was a good friend of harry truman. >> that's correct. >> charlie: give me a sense of him. >> of course my sense of him is not as intimate by any means in my sense of the most recent three chief justices because i was a law clerk for another member of the court. >> charlie: justice rutledge. >> right. and i had limited contact with the chief justice vincent. but he was a person who apparently was very successful at a oral level but he was not himself a craftsman in writing. he relied heavily on his law clerks for all of the writing, i think. i think that comes out but he was a person would fairly broad public experience and had his own views onpecific issues. but he wa surrounded by other lawyers who are really thought of as better lawyers and better scholars. >> charlie: then justice i
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guess warren came after that. >> he came after that. of course my contact with justice warren was as a practicing lawyer. i did argue one case before the court and as you may have noticed in there i was startled to find out how closest to the chief jtice. it was a frightening experienc. ginsberg also remembered the very first argument being how surprised at how those they were. my writing about justice warren, chief justice warren is pretty much as an observer as a member of the bar rather than any direct knowledge. with one exception, and that is that my friend john hastings who seed with me on the 7th circuit spent a fair am of time with the chief justice in dicial conferences. he was not one who agreed with
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earl warren but was an admirer how he ran conferences and dealt with other people. i remember john. he is a very high regard for a men whose views he did not share. >> charlie: i make this observation that both earl warrena former governor of californiand you, a republican apinted by president ford both were considered to be moderate republicans. and yet you turned out to be on a court and to vote for things that were considered very liberal. whether it's maranda or board of education or a whole range of issues that you ... how do you characterize that? >> well, i don't really try to characterize it. i think itust a function of the fact that the judicial work is very different from political work.
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one's approach to audicial converse may involved considerations entirely different from one's own political views about the matter. so that i really think that conservative judges with a wide range of political views. i don't attach any particular significance to the fact that i have been appointed by a republican and have been the republican member. >> charlie: but you considered yourself a moderate republican, did you not. >> yes, that's right. >> charlie: then the interesting thing about justice warren is brown versus brd of education. perhaps i think you indicate this is one of the great decisions. >> yes. >> charlie: of the supreme court. >> i think that's correct. >> charlie: because? >> well because of the results. the holding of the case that equal protection clause that really required equal treatment of members of all races. >> charlie: and overturning president at that te.
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>> yes. >> charlie: also justice warren was maranda came at that time. >> yes. >> charlie: these were all defining representationsrom the public of the warren court. >> that's true. the maranda case can be explored in two different ways. it produced unintended consequences because people in favor of strict enforcement opposed the decision vigorously and it may have had an impact on the political arena that intended to increase the severity of some of the criminal laws. though those were things that i'm sure earl warren either expected or intended. but on the other hand i think it also over the expectation of the law enforcement community general had a very healthy effect on the quality of law enforcement throughout the country. it required it police officers
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to undertake training in order to comply to a fairly simple rule in itself but is part of the behavior of the law enforcement. >> charlie: in order to be able to know how to me the maranda warning. >> that's right and the genal professial some law enforcement throughout the country. >> charlie: and sensitivity to individual right probably as well. >> yes, that's right. >> charlie: then came warren burger. describe him. >> well there are different ways to characterize him. he was of course very much inrested in improving the administrative side of the la generally in particular. he also is responsible for some very important decisions that i don't think he's given adequate credit for. when i think i seen it early in my chapters is the nixon cas >> charlie: u.s. versus
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nixon. >> yes. it really demonstrates that the court really is an independent institution motivated by the law rather than by polits. >> charlie: it also suggests something that somebody thought it was important to have a unanimous decision because the stakes were so high or not. >> i hadn't thought about that to tell you the truth. but the fact that it was unanimous i think was significant. you're right. >> charlie: the other important decision was roe vs. wade in the berger court. >> it was a veryimportant decision. i say in the book and it really is my view that it was not as controversy at the time it was announced, it was 7-2 i'm sure you know. the reason i said that was because when i camelong a few years later, the hearings before the senate judiciary committee i was not asked a single question about that issue.
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and he was asked a question whether he discussed the case around his law school surroundings and he said he didn't. and people that he may not be telling the truth. i'm totally convinced that was the truth. it was not that controversial issue. >> charlie: do you think it will be overturned. >> i have no way of knowing. i think it will be very unlikely. >> charlie: because? why do you think it's unlikely. >> because i think it's correct. the first decision for me was easy because i was just following a decision that the more i thought about it the more i think it's a correct evaluation of the importance of woman's interest in liberty in making decisions of that kind for herself. >> charlie: and privacy. >> yes. well the privacy, i thinkthe uns gott into the vocabulary affecting our thinking about t case. i think i mentionedhis in the
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book too, this is a case in which potter stewart ao wrote an opini which i think is much more persuasive than harry blackman's opinion. harry was trying to p together, decide a case following connectit which was a ver poorly written opinion. i think the law had an awkward development in trying to explain what was really at stake. i think potter stewartwrote a e opinion getting to the heart of the matter in a few words. >> charlie: potter stewart will be remembered for his words on pornography. >> that's correct. he had a famous quote about e death penalty. back when he was still on the court. he wanted to avoid it as random as being struck by lightening. he had a wonderful phrase in one of his opinions. >> charlie: you talked about the constitutional issue, you talked about your experience and
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how your experience had led you to believe that the death penalty, well you tell me. >> well, there's a lot of suggestion and i really changed my views on the death penalty. i'm not really sure that's accurate because what happened is that at the time of the decisions back in 1976, my first year on the courthere the constitutionality of the deh penalty was a major issue. we upheld an opinion joined by potter stewart, louis paul and myself as the controlling opinion in holding that the death penalty is enforced in some states. not those that had a mandatory death penalty like louisiana and i ink it was north carolina. it was constitutional if it was narrowly confined to avoid the risk of being as random as being struck by lightening, a quote from what potter had written in
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an earlier case. what happened over the years, the peonnel on the court changed, particularly the change after both of themesigned, after they had retiered. the court expanded the category of cases in which the death penalty was permissible. and it also expanded the procedures, one example is the victim impact evidence which would presume it might be admissible in non-capital cases but itas nothing to do with the blame worthiness or the acal guilt of the defendant. became permissible on the theory well it's okay on other cases. i thought, and justice powell thought he wrote original theme, are it was totally improper in a capital case to allow a categor of evidence in that has just an emotional appeal. and it's entirely on the side of increasing the likelihood that
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the jury would return a death verdict. and there were other changes in the jurors prudence. the rules regarding the qualification of jurors were loosened and so the jurors now actually may be more conviction prone than in other criminal cases. those changes made me feel that the court changed, had departed from the basic premise that underlay our original holding back in 1976. but the other change is that in administering the death penalty the law developed to the point where the court in facts insisting be painless for the defendant. which i think is correct, by the way. but by doing that, they had really removed the principal appeal and justification for capital punishment as it had been administered over the years in the past for retribution.
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people feel the reason the death pennity is to me the defendant suffered the way he made his victims suffer. well he can't suffer the way his victims suffer. he's going to be put to sleep as though he were getting readyor an operation in the hospital. >> charlie: so berger, the important case is there but also his legacy in part is he administered the court well. >> he did. well, yes and no. he administered the court. >> charlie: it depends on -- >> he made a number of constructive changes in the way the procedures operat and one example, it doesn't seem very colorful but it is important to oral arguments in the court, he changed the shape of the bench which is much more significant than one might think. >> charlie: explain that. >> instead of a straight bench, just now broken in three segments and the ones on the left and the righted ofhe center are moved closer to the advocate.
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which means that the justice on either end can see one another and hear one another better than they could before. and the lawyer in the middle can see everybody better. and so the conversation among the justices is better. >> charlie: in terms of oral argument, my friend jeffrey to been made this observation. you don't ask questions at the beginning. that you sort of, most of your questions come at the middle and you're very pligh and you say may i ask a question. of course you can ask a question. all the lawyer knowhat but you're very polite about that. but mr. tuben discussions that your questions come where the justices are going to be deciding on this oral argument. and particularly who might be the decisive justice. well that's very
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complimentary and interesting. >> charlie: is it true. >> i supse there's some truth about it in some cases. i've said this so many times. all cases are different. the reason i said may i ask you a question, i wanted to get it out before my colleague put in another question as a way of getting the floor. >> charlie: you don't normally lead off with the first question or second question. >> no. i think i agree with justice thomas on, letting the lawyer tell us what the lawyer has to say early and not to start in ways that my divert him in the presentation he thinks would be most helpful in the court. >> charlie: when was the last time you heard justice thomas ask a question. >> i d't remember. i think there was a case involving the cross burning, virginia cross burning statute. he asked a very good question. he asked very few questio but
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that's again reflective of his view that he wants to hear what the lawyeave to say. and he's more of a listener than a participant. >> charlie: after chief justice berge there was chief stice rehnquist who was a member of the court and had been by his appoint by president nixon. what was his tenure like? >> what was his tenure like? well, it was different in several respects which i can't sum up too accurate in a few words. but one difference was that he was a little more stern in open court. that he w very firm on enforcing the time limits when the red light came on, the argument was definitely over there were times when the person wasn't able to finish a sentence. some lawyers are experts at constructing very long sentences at the even of their argument. he was very efficient. he's a very efficient worker
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himself and he was an effient person presidingat conference and signing peasley -- opinions to others and doing the work generally. you have to admire him. he's totally impartial to his running both the conference and the open court proceedings. >> charlie: just for the benefit of our audience what do you mean by the conference. >> the conference is the meeting that the members othe court have in order to decide cases and decide other maers like whether to grant review or not. >> charlie: the first time they comeogether, the justes come together in a formal way. >> yes. and the conferences are hd during the two weeks. oralrguments are for two weeks and then two weeks off and two weeks on, basically. there's some deviation from that. ere will be conferences during the first week of ora argument. on went we would deside the cases argued on monday and on troy we -- friday we would
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decide the cases and also decide what to grant review in. the friday conference is the more important of the two. it's held in the coerence room and no one is present except the nine justices. >> charlie: no clerks are there, no one else. >> that's right. >> charlie: how important are clerks? >> they're very important. i've been getting a lotof credit for work i've done ever since i retired. people have been friendly to me but a lot of the credit should go to e courts because ias, one thing i was good at i'll tell you is court. >> charlie: what did you look for. >> it's very simple. i looked for people who had brains and who i thought i could enjoy being with. >> charlie: you also made it a practice with having a lunch with the clerks of the other justices as well. >> that's generally true. >> charlie: to give them exposure to the minds of all the justices. >> yes. the lunches with clerks from
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other chambers are really more social a it's not the same kind of interchange that y have with your own clerks. with your own clerks really go into detail on aspects of the case and spend a lot of time thrashing out what you think the results should be. >> charlie: was your clerkship with justice rutledge a great experience for you. >> it was a great experience. it was different in some ways from the experience of clerks today. i think perhaps a major reason was that he did so much of the work himself. we did the search, the two of us. wrote memos in every petition for review for the justice. and he allowed us each to write one first draft of a court opinion. and but on the most of the court opinion, he wrote them out a yellow pad on his own handwriting. might havead a footnote sayg jps gets cites or something like
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that. >> charlie: that would be you. >> that would be me. still one case in which he had a sentence and it said something the law has been abundantly well settled, blah blah blah. jps cites. i remember finding one old mississippi case that arguably supported hi position. so he changed to say the bette view. >> charlie: who was it that told you that if you wanted to be remembered, you needed a more distinctive name than simply john steven. and that john paul stevens would be more remembered than john stevens. >> it was my professor at property and future interests at north western law school. homer kerry who told us every lawyer who wants to become known has to develop something that's distinctive about him. either use a pen with green ink or do something. so then i thought well the name
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john stevens -- i just started to use the word paul. >> charlie: so then come the presented chief justice robert. >> that's right. he's a delightful person and a person of whom i'm very very fond. >> charlie: and who you thought was well qualified. >> definitely. >> charlie: arominent member of the bar. >> he made an excellent record arguing cases before us before he joined the court, i felt i knew him well based on his arguments andthey were alltop notch. he's very honest. very important for an oral add -- advocate to be honest about the law. >> charlie: you said he was like justice berger. >> he's a little less strict than lundquist was because he
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had experiences a there are times when he recognizes the lawyer should have a little more time. but i think he's got a better job. >> charlie: he will probably be at the job for a long time. >> absolutely, yes. >> charlie: you reject the argument that you became more liberal over the years. >> i never have particularly liked the term liberal. >> charlie: i know you don't. >> there's no doubt about the fact that i've learned a great deal during my period on the bench. every judge learns about different things. >> charlie: as you get new facts in your experiences you see things differently perhaps. >> you sometimes doctor that's certainly true. >> charlie: but how would you characterize this evolution in the way you look at the law and look at big issues. >> well, i don't really feel like there's been an evolution. i test it this i way. i tried to think about cases i would have voted differently since i've been here. i've been able to identify one that i do acknowledge i would have voted differently that's
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the texas capital case. i talked about that. but all the other cases i looked at i felt pretty proud about what i said in the early cases. >> charlie: let's talk about the cases in terms of where you have been a prominent voice. one is during the iraqi war. what principles informed the decisions that you made in those kinds of cases. >> one most note worthy was the basic holing detainees at guantanamo are entitled to the habeas corpus to test their detention. that case really turned out to be very similar to a case i worked on with justice rutledge when i was a law clerk. the question in the case we worked on was whether a german
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detainee would bring the habeas corpus against the attorney general. and the answer was no. i helped write that dissent. they took the other view and i always thought that view was correct, that you should not, it's not limited to the area, the place in which the complainant. anyway, that affected that decision. that goeall the way back to my viewsork with justice rutledge. i think it was a simple proposition and we were dead right butthere were those who disagreed. >> charlie: we faceow an issue that's gotten a lot of attention which is because of use of drones and argued assassinations, it turns out one of the people who were killed was an american citizen and that's a great political
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discussion. is that an issue the court should weigh in on if it's prepared as a point of law. >> there are two or three things i could say off the top my head about that. you first have to have a case of coroversy and then maybe members of the family might sue somebody, i don't know just who. i really think the fact that a citizen was targeted is quite irrelevant. the analysis i think i said publicly i thought the decision to target bin laden himself was definitely justify because he was an enemy, declared enemy to the extent there is a war. i could not really differentiate between him and admiral yamamot in world war ii. >>harlie: he cept the message he has been shot dn. >> the message i remember, and again it's just a memory so don't hold me. i remember a message came in
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that we gotne eagle and two sparrows and we knew yamamoto was the eagle and he was shot down. now analyzing that to bin laden, that was cpletely justified there. i think it would have been the same even if he happened to be born in the united states. >> charlie: if it was justified it certainly should be justified in the case do you think because the same circumstance somebody who was declared an enemy of the united states. >> you have to know the facts and you have to know how reliable they are to know the particular decision was justified. i can't say i know enough about the factual anysis that went into the particular decision or the legal analysis that went into the opinion that apparently justified or was the basis for making the decision. >> charlie: let's talk about two recent decisions you speak about and have spoken about in different forum. it is the decision of bush versus gore. >> there were five votes to do what i thoht should not have
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been done. >> charlie: was that a political act then? was that five people who decided we think this election we're electing the president of the united states, we think this is a political act and we're going to make that de. >> i don't think so. i know people have criticized that decision as purely a political act. >> charlie: exactly. >> those in the majority must have come to the conclusion that there was some kind of irreparable injury i cldn't identi. >> charlie: you didn't see it. you do not think to this day there was irretch rule iury and voting should have continued. >> absolutely. well the counting. >> charlie: counting, i'm sorry. >> it should have been completed in a very short period of time. >> charlie: you said we will never know if in fact who was the winner. but we clearly know who was the loser. >> that's correct. >> charlie: and you said. >> you quoted it substantiately. >> charlie: you said the loser was the nation. >> that's right.
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it's the nation's confidence i the independence of judges. >> charlie: clearly whether you accept e motivation or not, the nation's confidence in judges was done some damage by that decision. >> i think it was. i think it was. >> charlie: is that the first time you think politic has gotten. we all remember a stitch in time save nine. remember roosevelt a stitch in time saves nine. >> yes. >> charlie: politics is always probably influences, has some impact, is in the air or thght. >> i suppose but because it's always the dut and i think generally perform effectively at the impartial judge to put those matters to one side and decide on the basis of the law are rather than as a use of policy. >> charlie: you said you don't know if it was politics driving that decision of those fi. >> probably thought there were decisions justified on the
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merits. >> charlie: but you didn't see it you said. >> that's right. >> charlie: and it had consequences obviously. >> well, there's some debate about that. >> charlie: who might have won. >> there's some i think post election studies shows that bush might have won anyy. >> charlie: indeed they do. >> the real reason he lost apparently was that ballot that showed that people intended to vote for gore were voting for pat buchanan instead. >> charlie: in certain county in florida. >> in a florida county. it seemed unlikely -- >> charlie: there were all kind of studies about that. >> yes. >> charlie: there is also this, i mean which was surprising to me on the flag burning issue. you voted, you belie that burning the flag was not freedom of expression, beuse? >> wel again, there are two aspects, two or three thing you might say about this. one, even though i disagreed with the decision, i certainly
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would not say that's a case that should be overruled. i think the court's rulin should be respected. there were two messages that were being conveyed by the people who were burning the flag. one was they disagreed with president reagan's policies and the other was they disagreed with people who viewed the flag as a symbol of importance. and the fact of the texas statute, protective of the flag made justice brennan explain the decision saying well the decision was viewpoint based. well there was nothing wrong with their protesting reagan, but burning the flag in order to he show their disrespect. if you say that view point discrimination, that would justify any kind of expressive nduct that disagrees with some particular statute. such as if you use a very loud sound truck to parade around the
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streets. you can just say that's view point discrimination because they're not only conveying the message they're inavor of whatever polital but ao they tonight believe in regulating sound tracks. they should be allowed to do it. what i'm saying is i think the decision, the opinion itself was not that wisely reaned. the reasoning was not good. and of course the main consequences of the decision is that nobody burns flags anymore. >> charlie: because of the decision. >> well i ppose that's why. but obviously, it's not an overridingly important method of communication because we've gotten along whout it for the last 25 years. >> charlie: tell me about thatnd how you saw that case. we're seeing the consequences of it now. >> as you probably know, my explanation of my views in the case occupied some 80 or 90
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cases. >> charlie: i know. you read a portion of i think at the time. >> that's true. i must say i thought about that case this morning when i was reing about one of the republican debates recently. several candidates debating. it occurred to me that if you had six candidates debating and two hour s aside for the debate you ought to give each person 20 minutes time to do it. you shoot allow time among the candidates o the basis how much money they're willing to pay for the time. that would not be fair. >> charlie: right. >> but if you follod the set suns of united reasoning, the market for debate over election campaign has a limited amount to it. and you are saying basically that everybody can spend as much money as they want to, you're allocating the time not on the basis of an equal opportunity to present your views but on how much money you have available to pay for it.
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it seems to me if it's right to say that there should be equality in a six person debate or a two person debate. why do you forget about equality with a political campaign. >> charlie: one of the thing that's important, i think is still impornt the rporation's going to vote. >> right. they're not the same kind of speaker as people who speak. plus the fact when you're talking about the right of a corporation, you have subsidiary issues. does that mean the person in charge can spend the moneying does it mean the president of the company does or the board of directors does or the shareholders? because when the corporation speaks, it's speaking for all the shareholders as well. some may not agree with views of the corporation itself. >> charlie: in terms of the court not the supreme court but
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the judicial system. justice o'connor and justice breyer have raised questions abouthe political issues of the judicial process. with the election of judges. do you have some sense of concern about that? >> i agree with justice o'connor 100%. i've been making speeches ever since i became court of appeals judge saying that one of the eat assets that federal judges have ss him apart from most state judges is they don't have to give any thought at all to whether the public will agree or disagree with thei decision. they're just tryinto figure out what the law requires. >> charlie: once you're confirmed that's it. >> that's it. >> charlie: you're there for life. >> you're there for life and i think it's a tremendous asset for federal judges to not be concerned about the popularity in making their decisions. >> charlie: you looked at the country and think about it and make speeches about it. what is it you want us to
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understand about your own concerns? >> well, i don't have a shorthand answer to that. there are a number of things and certainly one that am thinking about just the last couple days because i read an article about a class in law school in columbia in districting. and i think that gerrymandering that has becomeoutine throughout the country by both democrats and republicans. >> charlie: state legislatives which decide the congress thul driksdz in their own state. >> they do it ve candidly now trying to maximize the number of districts th will favor the majority in the state. which i think is fundamentally wrong. the districting decision should be made impartially. when they are exercising government power deciding what the district should be, they should not be permitted to act
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as democrats or republicans. they should be acting impartially. and i think that the fact that they frank about their partisan objectives is a traumatic difference from the approach that was taken in an earlier case that i participated inhe gerrymandering issue. and i think it's had an effect of making the country more polarized than it otherwise would be where they have put partisan issues or partisan interests above the public interest. that's just an example of a very important phenomena that has changed in the years since i've been on the bench. >> charlie: here's what else has changed. the confirmation process has changed. you were confirmed by yew in an muster vote. it was often a bloody fight.
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>> yes. >> charlie: do we suffer something from that. it's become such an issue since i guess it was the nominaon of justice boric. >> i thought he was not fairly treate i would have voted for justice bork and he was a very qualified justice and o knows had he been approved. i think the process has changed significantly. and i even would go back to the approach they took with i moo own confirmation proceeding in which i didn't get any special training. >> charlie: you didn't have a team of lawyers and advisors anticipating questions and all of that. >> i felt there's nothing wrong with me saying i don't know the answer. rather than trying to find justices who do know the answers to all the questions. >> charlie: appointing those
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that will somehow assure the president he can do this or that. >> that's right. president ford didn't talk to me at all about how i might vote on any issue. >> charlie: what's the most satisfying thing about serving as a justice of the supreme court? >> well that' a good question. it's really a wonderful job. it's annteresting job you work with decent people which you respect and admire. which makes yo life more healthier and happier. >> charlie: you respect and admired everybody that served in the courtroom. >> absolutely. that's an important part. of course you're doing important work. you do have opportunities from time to time to have an impact on the public who hopefully will be constructive. >> charlie: what's the best preparation for a supreme court
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justice. need you have judicial experience. >> i don't think that's essential by any means. i think it's an asset that makes your work easier when you come before if you've been a federal judge before. how far our great justices did not have judicial -- louis -- is an example, who has been a lawyer when he came on the court. byron white did not have judici experience. there are many, i think the court really benefits from some sort of diversity within the group. and although i think all of the members of the present court e imminently well qualifiei wouldn't change any one of them. i do think i kind of like the situation before when there was a little diversity in both geographic different law schools and different professionals. >> charlie: it seems like a huge percentage of them now come from ivy league schools.
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>> that's right. >> charlie: not north western law school. >> that's right. >> charlie: they've all been judges before. >> all excepts alana who has been a solicitor genal and a law clerk. >> charlie: there's no requirement that you, is there a requirement that you be a lawyer. >> no. >> charlie: i didn't think so. when i was in law school there was a professor of constitutional law who wasn't a law but an academyian that he could serve on the court. >> that's right. >> charlie: regrets over these last years. you said there was only one decision. >> regrets? i suppose there are a lot. if you changed the decisions in which i was the dissenter to make the majorities i would be very happy. >> charlie: would you like to have been a quote swing justice as justice o'connor was and
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justice kennedy clearly is? >> well i think i may have been on a fai number of cases too. >> charlie: between justices. >> as i mention in the book, i know there were cases when i first keep on the court and one sat on my rig and one on my left and the eight seniors voted and they were four to four and i would like to say i agree with bill. there were a fair number of cases in which i ended up as the supreme justice. >> charlie: that become the most important person in the court at that moment doesn't it. >> i suppose that's ght in a way. >> charlie: if you had in your han and your power to create the majority, then ... >> assuming nobody else changes. nothing's etched in stone until the opinion is actually announced. >> charlie: finally help us understand and we talked about at the beginning, this idea, this basic idea offing the
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intent of the framers versus how you divide that and how you have made the cices that you have in terms of experience, in terms of how you interpret what the intent is. >> i guess it's trite but i always admired the phrase judicial restraint. in one case i was so happy with a case called prince against the united states in which the issue was whether the federal government could enlist the help oftate law enforcent personnel to make background checks on gun purchase as part of the, what's called the brady act. during the perfect when the government was formulating its own policy. and could they use the state's chair as an interim. the court celled no the federal government cannot commandeer state ofcers. i dissent in that case. several times i think i was quite right to say there really
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was no particular history out thersaying whether the federal government could call on state agents for help in particular situations. i think there was history. history that showed they could. but assuming there was none at all. you then have the question will which way suld we decide it. should we decide it in a way that limits the power of the federal government to perform very usefuand important services or should we say well in the case of dell, we should not limit the ability o the government, other branches of the government to do what they think is necessary in that situation. of course the more recent example would be airport security after 9/11 and you should decide the case narrowly by avoiding a rule that will tie the hands of other branch of government. judicial restraint is the old fashion term. >> charlie: right. >> where you make decisions in a way that allows other decision makers to do their job properly
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if they can. and not try to get into the act we'll let the federal judg decide this. therefore it's taking away the authority in other branches. the fundamental error in the begun decision basically they're sayi federal judges are going to have the last word on what kind of policy should governor begucontrol legislation when it seems to me quite clear that the framerrers never thought that. they thought state scholar would be theast word on done control policy. >> charlie: do you think same sex marriage would come to the supreme court. >> i guess so. there are some very good lawyers as you know have a case and i don't know just what the status of that case is. but that's an interesting issue because it seems to have been resolved by the public at large
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rather than more narrowly. >> charlie: in terms of having the state legislature. new york most recently. >> new york most recently. and the fact i think the public generally has become aware of a basic threat that they didn't realize years and years ago that they are of people who d have sameex preferences and that's not a disease as it was oncethought to be. it's a much broader understanding of people who are thought be different that really aren't all that different. >> charlie: thank you so much. >> i've enjoyed it. >> charlie: thank you very much
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